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Water protectors rounded up on October 22.

‘This Is Stolen Land’: 38 Water Protectors Arraigned in North Dakota

Chelsey Luger

On Monday afternoon, November 7, in Mandan, North Dakota, 51 water protectors* were scheduled to appear before Judge Gail Hagerty at Morton County District Court to be arraigned on charges related to arrests that took place on October 22 near the Dakota Access Pipeline construction site just north of the Standing Rock Reservation in Morton County. Of the 51 scheduled to appear, 38 water protectors were present to enter their pleas.

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Of those who were not present, most had arraigned in advance to schedule later court dates. Morton County charged all 38 present defendants with Criminal Trespass. Thirty-six of them were additionally charged with Engaging in a Riot. Both Criminal Trespass and Engaging in a Riot are Class B Misdemeanors in North Dakota with maximum penalties of up to 30 days in jail and maximum fines of $1,500 if found guilty. All defendants pleaded not guilty to all charges.

The tiny courtroom on the third floor of the Morton County District Courthouse was packed to the brim with water protectors, a few attorneys, and six fully armed Morton County Sheriff’s Department officers around the perimeter of the room. Outside the building and throughout the hallways, supporters of the defendants gathered and waited, as none were allowed in the courtroom due to lack of space.

Hagerty went down the list and called each defendant to the bench one by one, making her way through each arraignment at a rate of about four minutes per person. The judge fully read through the rights, charges and instructions on how to apply for court-appointed attorneys for the first five individuals or so. As the proceedings continued, she began to abbreviate the process by asking each following defendant whether they had already heard and understood the nature of their rights and charges based on her reading to other defendants in the room. This expedited the process but frustrated several defendants who requested that she fully read their rights, attorney options, and describe the penalties and charges, even if they had already heard them. The judge complied.

The court proceedings went on quietly and without disruption, but several water protectors took time to question Hagerty or make comments about the situation at hand while on the bench.

“I object to the use of the overwhelming force of six Morton County Sheriffs as bailiffs in court,” said one woman after entering her not-guilty plea, “and I hope that there won’t be any more than the already-too-much 31 billion gallons of fracked water in North Dakota, Your Honor.”

Hagerty replied, “Your objection is noted.”

On the wall behind the judge, a large painted portrait of a Plains chief in headdress hung on the wall. The details of the painting were not visible to those in the public seating area of the courtroom, so several defendants utilized their speaking opportunities to question the judge about the painting.

“May I ask which Native American is on that wall right there?” one defendant asked.

Hagerty replied, “I have no idea, and that’s something you can figure out at another time. We have a lot of people to get through.”

Later on, another defendant brought up the painting again.

“I don’t think this court respects Native people, and so you should take that picture down. All this violence against Native people is really disgusting and disrespectful,” he said.

The judge ignored the comment and continued the proceedings. While the arraignment continued, one of the officers present in the court, who had otherwise been standing against the wall, stepped closer, within arm’s reach, to the defendant, and kept a watchful eye. He stepped back again once the following defendant approached bench.

After pleading not guilty to one charge of Criminal Trespass, another defendant asked the judge, “How could you charge anybody for trespassing on treaty land?”

“Talk to your attorney about that,” the judge advised, “It may be something that they’ll want to argue in court, but it’s not something that we’ll talk about today.”

Most defendants’ trial dates are scheduled for January 13; a few are scheduled for January 12, January 20 and February 24. All but three noted that they will not be hiring attorneys, but that they would like to be represented and that they intend on applying or already have applied for a state-appointed attorney. The judge noted that the trials will be six-person jury trials in Morton County.

Several defendants chose to speak in the Lakota language while answering yes/no questions.

“Do you understand the process for acquiring a court-appointed attorney?” the Judge asked one individual.

“Hau,” he replied. (“Hau,” is the male way of saying “yes” in Lakota).

“You’re going to have to answer ‘Yes” or ‘No,’ ” the judge demanded, and repeated her question.

“Hau,” he said again, this time adding, “I’m going to ask that you learn the language of the land here and understand that this court has no jurisdiction over a sovereign nation in 1851 treaty territory.”

Later on, when another defendant also answered with “Hau” instead of “yes,” the judge did not object and simply accepted the answer.

Another defendant offered his interpretation of the charges while pleading.

“To the charge of Engaging in a Riot, how do you plea?” the judge asked.

“Walking in prayer is not a riot. Not guilty,” he replied.

“To the charge of Criminal Trespass, how do you plea?” the judge asked.

“This is stolen land. Not guilty,” he stated.

Only one time in the midst of the hearings did the audience erupt in any kind of commotion. A Caucasian woman, gray-haired and neatly dressed, pleaded not guilty to both criminal trespass and engaging in a riot. When her arraignment ended, just before she left the bench, the woman leaned forward and spoke quietly into the microphone.

“Your honor, I do have one thing to say,” she said, “I am so proud to be here. Thank you.”

The audience erupted in applause.

*While all defendants’ full names were listed over the course of the hearing, the writer chose to refer to them in pronouns for privacy purposes, as several expressed concern for their safety regarding public information about them being read throughout the hearing.

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